No. 80-135 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

BOZEMAN PARKING COMMISSION, 

Plaintiff and Respondent, 

FIRST TRUST CO. OF MONTANA, as 

Trustee for JEAN M. STIMSON, Trust, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial ~istrict, 

In and for the County of Gallatin. 

Honorable W. W. Lessley, Judge presiding. 

counsel of Record: 

For Appellant: 

Bolinger, Higgins and Andes, Bozeman, Montana 

Far Respondent: 

Berg, Morgan, Coil and Stokes, Bozeman, Montana 

Submitted on briefs: August 13, 1980 

Decided: SEP 9 - 1984 

Filed: - SEP 9 - 1980 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

This is an appeal by First Trust Company of Montana, 

(First Trust), as trustee for Jean M. Stimson Trust from a 

judgment of condemnation granted to Bozeman Parking Commission, 

(Bozeman) , by the District Court, Eighteenth Judicial ~istrict, 

Gallatin County, and from an order of that court denying 

necessary expenses of litigation. We hold that First Trust 

is entitled to recover its necessary expenses of litigation and 

that the judgment of condemnation should stand. 

Plair~tj ff is a municipal entity created by the City of 

Bozeman, Montana, and endowed by statute with the power of 

eminent domain. Section 7-14-462(.2), MCA. First Trust, as 

trustee, is the owner of certain real property in the original 

town site which Bozeman seeks to condemn for the establishment of a public off-street parking facility. 

We will first treat the issue raised by First Trust that 

the District Court should have granted its motion to dismiss 

the action entirely. 

After the preliminary condemnation order was entered by 

the District Court, commissioners were appointed to determine 

the value of the taking. They returned their report on 

August 21, 1979, determining that First Trust should be paid 

$155,000. The clerk of the District Court mailed to the 

attorneys of record for the parties a copy of her minutes for 

August 21, 1979, which stated with respect to their findings: 

"The verdict was given to the Clerk with Orders 

to file same, the Commissioners were excused by 

the Court and stated that they would be mailed a 

check for their services." 

No notice of the filing of the award, together with a 

true copy of the commissioners' report, was served by the 

clerk upon the parties in the same manner as a summons as 
required by section 70-30-303(1), MCA. 

Section 70-30-304 (1) , MCA, provides that the time for 

either party to appeal is within thirty days after the 

service upon the appealing party of the notice of the filing 

of the award. Since the service required by statute was not 

made in this case, the triggering incident for starting the 

time running for appeal from the commissioners' award 

never occurred. No judgment based upon the commissioners' 

report had been entered by the District Court when, on 

October 23, 1979, First Trust filed its motion to dismiss 

the action in its entirety upon the contention that First 

Trust had not been paid the amount of the commissioners' 

award, and an execution could not be made upon the municipality. 

The District Court held a hearing on the motion to 

dismiss and on December 7, 1979, entered its findings and 

conclusions, in essence deciding that no final judgment had 

occurred in the case because of the failure of the District 

Court clerk to send a notice of the commissioners' award, 

together with a true copy of the report, upon the parties in 

the manner required by section 70-30-303(1), MCA. As a 

result of the hearing, however, the notice of filing of the 

report of the commissioners was duly served by the District 

Court clerk on December 11, 1979. Thereafter, no appeal was 

taken within thirty days by either party. 

It is the contention of First Trust that the thirtyday period to appeal the commissioners' verdict began to run 

upon the entry of the report and the actual notice thereof 

to the parties on August 21, 1979. The applicable statutes, 

however, are not open to that construction. It is the duty 

of the District Court clerk, as we have said, to notify all 
interested parties that the report has been filed by a 

notice accompanied by a true copy of the report, which must 

be served upon the interested parties in the same manner as 

a summons. Section 70-30-303(1), MCA. Immediately following that section, with respect to an appeal to the District 

Court from the commissioners1 assessment, section 70-30-304 

(1) , MCA, provides in pertinent part: 

". . . Such appeal must be taken within the 

period of 30 days after the service upon 

a~~ellant -- of the notice -- of the filina - of 

the award by the service of notice of such 

appeal upon the opposing party or his attorney 

. . .I1 (Emphasis added.) 

The only statutory provision for service of the commissioners' award is that found in section 70-30-303(1), 

MCA. Section 70-30-304, MCA, can have no reference to any 

nonstatutory method of service, nor even to actual knowledge of the parties, that the comissionersl award has been 

filed. The statutory purpose of requiring the clerk to 

serve the notice of the commissioners1 award is to provide a 

definitely ascertainable time contained in the records of 

the District Court which marks the start of the time for 

appeal. When the statutory procedure is properly followed, 

nothing is left to chance as to the start of the running 

of the time for appeal. 

If actual notice or nonstatutory service of such notice 

is to be regarded as triggering the time for appeal, too 

much is left to chance and to the subjective impressions of 

the parties or their attorneys. In this case, therefore, 

the time for appeal from the commissioners1 award did not 

begin to run until the notice served by the clerk was properly completed on December 11, 1979. On the date that First 

Trust moved to dismiss the appeal, October 23, 1979, the 
commissioners' award was merely filed and nothing statutorily had occurred to trigger the running of the time for 

appeal. The District Court properly determined that no 

final judgment was then pending. There was no legal duty 

upon Bozeman at that time to make payment to First Trust. 

It is only when a condemnor has failed to make payment of a 

final judgment that the condemnee is entitled to an order of 

dismissal of the action under section 70-30-308(2), MCA. 

The second issue is whether First Trust is entitled to 

the necessary expenses of litigation which it incurred in 

this condemnation case. 

There is no dispute between the parties that Bozeman 

made a final offer to First Trust of $110,000 and a conditional short-term offer of $140,000. The eventual award as 

we have stated was $155,000. 

On December 18, 1979, First Trust filed and served its 

motion for taxation of costs and attorney fees in the condemnation litigation. When this motion was filed, the thirtyday time for appeal was still running since the notice by 

the District Court clerk of the report of the commissioners 

was served on December 11, 1979. Moreover, no final judgment 

or order of condemnation had been entered. The District 

Court on January 23, 1980, denied the motion for taxation of 

costs and attorney fees. On January 24, 1980, the ~istrict 

Court entered its final order of condemnation in the case. 

The final order noted that Bozeman had paid and deposited 

with the court clerk all sums due by reason of the commissioners' award and that no appeal from the assessment of the 

commissioners' had been taken within thirty days. ~otice of 

entry of judgment was served on the same day by the clerk. 

On January 25, 1980, First Trust, without renewing its 
motion to tax costs and attorney fees after the entry of 

final judgment, filed a written offer of proof of the costs 

which were incurred in the litigation. The District Court 

held a hearing on the written offer, and on February 7, 

1980, accepted in full as reasonable and necessary expenses 

of litigation the items set forth therein. 

The condemnee is entitled to his necessary expenses of 

litigation "in the event of litigation and when the private 

property owner prevails by receiving an award in excess of 

the final offer of the condemnor." Section 70-30-305(2), 

MCA. When First Trust filed its motion on October 23, 1979, 

to tax costs and attorney fees, it was not entitled to 

a judgment on the award of the commissioners because the 

time for appeal had not began to run on the day that the 

motion was filed. The District Court, therefore, properly 

denied the motion. 

However, it is the contention of Rozeman that 

First Trust is not entitled in any event to attorney fees 

and costs. Bozeman reads section 70-30-305, MCA, to mean 

that an appeal from the commissioners' award must be perfected by one of the parties, and thereafter, within thirty 

days the condemnor must submit to condemnee a written final 

offer of judgment. If these events do not occur, Bozeman 

contends that then there is no right to attorney fees and 

expenses of litigation under section 70-30-305, MCA. 

If this contention were accepted, any condemnor could 

avoid the payment of necessary expenses of litigation to the 

condemnee simply by not appealing from a commissioners' 

award. This cannot be the result in light of the constitutional provision in 1972 Mont. Const., Art. 11, S29, which 

provides with respect to eminent domain, in part: 
". . . In the event of litigation, just compensation 

shall include necessary expenses of litigation to 

be awarded by the court when the private property 

owner prevails." 

The legislature, in adopting section 70-30-305(2), MCA, 

used nearly the same language as the constitutional provision, providing: 

"In the event of litigation and when the private 

property owner prevails by receiving an award 

in excess of the final offer of the condemnor, 

the court shall award necessary expenses of 

litigation to the condemnee." 

Under the constitutional clause, there are only two 

conditions necessary to entitle the condemnee to litigation 

expenses. They are (1) litigation, and (2) the private 

property owner prevailing. The legislature simply explained 

this constitutional provision in section 70-30-305(2), MCA, 

when it provided that the private property owner prevailed 

when he received an award in excess of the final offer of 

the condemnor. Whether we look at the statute or the constitutional provision, no simpler statement of the condemnee's 

right to litigation expenses can be made than: if he prevails in litigation, he is entitled to recover his expenses. 

Those conditions are fully met here, and if on remand the condemnee 

moves the District Court for such necessary litigation 

expenses, it will be entitled to those expense amounts 

already accepted by the District Court in the offer of 

proof. Thus, the constitutional intent will be served and 

the evident legislative intent also. 

First Trust raises a constitutional issue claiming that 

section 70-30-305, MCA, is unconstitutional if the condemnee's right to litigation expenses was limited to those 

situations where an appeal had been taken from the commissioners' award. In view of our holding foregoing, there is 

no need to reach the constitutional issue. In any event, 
the constitutional issue is not raised properly under Rule 

38, M.R.App.Civ.P. 

One final issue raised by First Trust requires discussion. 

On November 1, 1979, Bozeman deposited with the clerk 

of the District Court its warrant in the amount of $156,860, 

representing the commissioners' award plus interest. The 

warrant was made payable to First Trust. First Trust's 

contention is that the warrant was not a deposit of money 

17 0 

under section 79.-30-308, MCA. 

At the time Bozeman deposited the warrant with the 

District Court, there was no legal obligation upon it as a 

condemnor to do so. No final judgment had been entered, as 

we have previously noted, and the only purpose of a deposit 

in this case at that time would be to make available to 

First Trust monies which could be used to satisfy a final 

judgment under section 70-30-308, MCA. First Trust is 

correct that section 70-30-308, MCA, requires that money be 

deposited instead of a warrant, but here that point is 

unimportant, At the time of the deposit of the warrant with 

the District Court clerk, First Trust was not entitled to 

payment because a final judgment had not been entered. 

There is no requirement for a deposit of money with the 

District Court under our statutes dealing with eminent 

domain until it is necessary that the condemnor make payment of a final judgment, with one exception. The exception 

is when the condemnor seeks an interlocutory order putting 

the condemnor in possession of the condemned lands. When 

that occurs, the provisions of section 70-30-311, MCA, come 

into play and the condemnor must deposit with the District 

Court for the condemnee the amount of compensation claimed 
by him in his answer, or the amount assessed by the commissioners or by the jury, as the case may be. 

Here Bozeman had not sought an interlocutory order 

putting it in possession of the lands claimed. Therefore, 

the deposit of a warrant instead of money with the clerk of 

the District Court in this case did not cause any prejudice 

to First Trust. 

The judgment of the District Court granting condemnation 

of this case is affirmed. The order of the District Court 

denying necessary litigation expenses to the condemnee is 

also affirmed, but the cause is remanded to the District 

Court so that First Trust may have an opportunity to move 

again for taxation of its necessary litigation expenses 

before the District Court. See State v. Helehan, cause no. 

80-60, decided August 27, 1979, in this Court. Costs of 

appeal shall be borne by each party. 

This case is a good example of the legal confusion 

which results when attorneys involved in special proceedings, 

such as eminent domain, do not carefully follow the statutes 

provided. At every stage of difficulty before the District 

Court, the answer lay in the provisions of the statutes. 

Had they been followed, there had been no need for 

this appeal. 

We concur: 

Justice